The Gazette 1973

UNREPORTED IRISH CASES Contempt of Court—£250 fine substituted for impris- onment (Court of Criminal Appeal). Mr. Justice Walsh, giving judgment, said : "On 25 November 1972, the Special Criminal Court con- victed the applicant for contempt of court in the face of the court and sentenced him to a period of imprison- ment of three months from that date. Having been refused a certificate for appeal by the Special Criminal Court, the appellant applied to this court pursuant to the provisions of Section 41(1) of the Offences Against the Sate Act, 1939, for leave to appeal against the sentence and on 27 November 1972 this Court granted the application for leave to appeal and admitted the appellant to bail pending the determination of his appeal to this court.

to disclose the information. " 'I would be not only putting my own exercise as a journalist into jeopardy, I would make it very difficult adequately to promote the public good by making it difficult for any journalist all over Ireland to foster the free exchange of public opinion'." Mr. Justice Walsh continued : "The court is quite satisfied that Mr. O'Kelly genuinely believed that he would be acting in breach of his journalistic ethics if he were to answer the question, but the Court is not fatisfied that he was entitled to refuse to answer it. Furthermore it appears to the Court that there was a considerable amount of confusion in Mr. O'Kelly's mind on this matter, though this may be explicable by the fact that Mr. O'Kelly found himself in an environ- ment and a position quite unusual for him. It appears to the Court that what Mr. O'Kelly had already said in evidence amounted to evidence to the effect that the man he interviewed was Mr. Sean Mac Stiofain and that the voice on the tape recording was that of Mr. Mac Stiofain and that the interview on it was the interview in question and that the tape had not been tampered with. The interview in question was one made for public broadcast and one of the essential features of the publi- cation was the fact that the identity of the person being interviewed was Mr. Sean Mac Stiofain. "Mr. O'Kelly's references to the difficulty which mil h ! be placed in the way of promoting the public good by fostering the free exchange of public opinion appears to add further confusion to the matter because the object of the interview was the publication of it. The Court is aware that in general journalists claim the right to refuse to reveal confidences or disclose sources of confidential information. The Constitution, in Article 40, Section 6, states that the State shall en- deavour to ensure that the organs of public opinion, such as the radio and the press, while preserving their right of liberty and expression, including criticism of government policy, shall not be used to undermine public order or morality or the authority of the State. Subject to these restrictions, a journalist has the right to publish news and that right carries with it. of course, as a corollary the right to gather news. No official or governmental approval or consent is required for the gathering of news or the publishing of news. "But even where it does, journalists or reporters are not any more constitutionally or legally immune than other citizens from disclosing information received in confidence. "The fact" that a communication was made under terms of expressed confidence or implied confidence does not create a privilege against disclosure. So far as the administration of justice is concerned the public has a right to every man's evidence except those persons protected by a constitutional or other established and recognized privilege. "As was pointed out by the Supreme Court in Murphy v. The Dublin Corporation and the Minister for Local Government it would be impossible for the judicial power under the Constitution in the proper exercise of its functions to permit any other body or power to decide for it whether or not certain evidence would be disclosed or produced. 210

"On that occasion this court also ordered that in the event of the appeal being dismissed the appellant should serve the remainder of the sentence imposed by the Special Criminal Court without any remission in re- spect of the period of bail allowed. The appellant's appeal has now been heard by this court. "The contempt arose during the course of the trial at the Special Criminal Court on the date in question of Mr. Sean Mac Stiofain in which he stood indicted of being a member of an illegal organisation contrary to the Offences Against the State Act. 1939. "One of the witnesses called on behalf of the prosecu- tion," said Mr. Ju tice Walsh, "wa«= the present appel- lant and in the course of his evidence he refused to answer a question put to him by the Court. This refusal was adjudged contempt of court in the face of the Court. "The appellant is a well-known journalist employed by Radio Telefis Eireann. He had been called to give evidence about an interview he had had with the accused and upon which the State was apparently relying as evidence of an admission by the accused of membership of an illegal organisation or of an ad- mission of facts from which that conclusion might be legitimately inferred. In the course of his evidence Mr. O'Kelly stated that he had had an interview with somebody, who was a man, on the morning of the 18th of November 1972 and that he had made a tape recording of the interview and had given it to Mr. Desmond Fisher, the deputy head of news of Radio Telefis Eireann. He stated that he had not inter- fered in anv way with the tape before it was handed to Mr. Fisher." Mr. Justice Walsh continued : "The tape recording was identified in Court partly on the evidence of Mr. Desmond Fisher and partly on the evidence of Mr. O'Kelly who also stated in his evidence that the tape recording before the Court was an accurate and authen- tic one and 'that he was satisfied the remarks on it by Mr. Mac Stiofain were authentic.' "When asked the direct question who was the man he interviewed, he refu c ed to answer. He indicated that this was a problem of conscience for him and that while recognising his duty to the Court as a citizen to co-operate with it in the furthering of justice he stated : 'I also appear here as a journalist and, as a journalist, I do in conscience feel bouad to respect con- fidences given to me in that capacity, so as to answer the question put to me properly'; he did not feel free